Wednesday, July 15, 2009


By Brigadier Chitranjan Sawant,VSM

The same sex relationship between two consenting adults in the privacy of bedroom in the state of Delhi is now protected by the High Court from prosecution by police. A bench comprising the Chief Justice and a brother judge has declared that section 377 Indian Penal Code violates Articles 21, 14 and 15 of the Constitution of India as it infringes the rule of Equality before law. As per a judgement of the Supreme Court of India delivered a few years ago, an order of a High Court on a piece of legislation that is promulgated throughout the country, will be applicable to the rest of India too. Should there be a judgement of another High Court at variance with the High Court concerned, the case will be referred to the Supreme Court whose order will be final and binding on all parts of India where the original legislation is applicable. It will be pertinent to mention that in the state of Jammu and Kashmir, Ranbir Penal Code(promulgated by His Highness Maharaja Ranbir Singh) is applicable and not the IPC.

Their Lordships were of the opinion that the method of achieving sexual satisfaction in the privacy of the bedroom is a private matter between two consenting adults who may be of same sex and the government has no business to interfere. Thus the said section of the statute book is rendered ineffective partially by the order of the Delhi High Court delivered on 2 July 2009. The Union Law Minister is reported to have said that an appropriate legislation giving relief to the homosexuals may be brought before the Parliament subsequent to consensus arrived at by the political parties, religious and cultural groups and others who have been a party to the legal debate going on for almost a decade. By the way, no political party of national standing wants to say anything on the subject because the homosexuals are all adults and form a sort of vote bank. Some influential groups are making an endeavour to shape public opinion in favour of repealing, what they call, an archaic law.

The influential religious and cultural groups have voiced strong opposition to the said judgement of the Delhi High Court and have indicated that they would prefer an appeal to the Supreme Court of India. The common man in rural India who is equally affected by the new judicial order is blissfully ignorant of what is going on in the national capital. That has been the way of life all along, I guess. Surprisingly the Media, both print and electronics, has hailed the said judgement as a historic one and has gone gaga over it. These days it is considered fashionable to go with the queer people, their outlandish dress and imported thought process and ignore the traditional values of life. It appears that a few in the intelligentsia have monopolised the thought process of the governing machinery. Another explanation offered is: most of the media men and women are products of public schools that are wholly or partly residential. One is given to understand that the idea and practice of Man having Sex with Man – MSM – or woman having sex with woman – WSW- is not frowned upon in some of the prestigious public schools. Thus those who live in glass houses do not throw stones at others. Just turn Nelson’s eye to an infringement of law when the bureaucrats and intellectuals had themselves gone through the mill.


This section of the Indian Penal Code is listed under the heading, Unnatural Offences. So, whatever is described hereafter is a part of the unnatural behaviour of men and women that the code covers. The section says:
Whoever has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
It was Lord Macaulay, the man notorious for making Indians Brown Sahibs through English education, who had drafted the Indian Penal Code and had inserted the relevant section in keeping with the morality prevalent in the then England. If this plea of legal luminaries is accepted, it will mean that before 1871 when the IPC became law governing crime and punishment, Indians did not consider Homosexuality a criminal offence. This line of thought is preposterous. It should not be allowed to go unchallenged. By and large, Marathas, Rajputs, Jats, Mughals and Pathans ruled parts of India before they accepted the overlordship of the British operated East India Company. Crime was not overlooked by the then Indian rulers. One wonders why they would have condoned homosexuality when it was forbidden in both the major religions professed then, that is,Hindu Dharma and Islam. Christianity came to India thereafter and it too frowned upon this major infringement of moral code of conduct. Therefore, to say that the British rulers had criminalised the offence of homosexuality and it should quit India since it is no more a criminal offence in the UK will be a travesty of truth. In India today most of the influential religious groups have spoken against homosexuality and called it a sin, let alone a crime.


The Hon’ble Chief Justice and his brother judge in their 105-page judgement have taken pains to quote and analyse numerous judgements on Equality before Law delivered by eminent judges in USA, UK and Europe. Their Lordships have overlooked the dissimilarities in the mental make -up and cultural beliefs of the Western and Indian societies. MSM and WSW may be prevalent on a large scale in those countries and the meaning of Liberty to have sex the way you like will be different from what is current in India. It is not only the factor of Law but also the all important factor of Social recognition vis-a-vis social stigma. When the entire social order, not only so-called intellectuals in coffee houses, looks down upon MSM and WSW, how can the judiciary approve of or rescind an Act of Legislature on the strength of some judgements defining Jurisprudence and Equality before Law that were delivered across seven seas taking account morality of a foreign social order. One wonders if it was love’s labour lost.

Their lordships have rightly quoted Pundit Jawaharlal Nehru, our First Prime Minister, on the subject of human spirit. “Magic of words cannot convey magic of human spirit and a nation’s passion”. Very well said and aptly quoted. Likewise a nation soaked in Dharma cannot be asked to overlook a section of society having sex against the order of nature, never mind if it is in the privacy of a bedroom. Lord Macaulay drafted the entire Indian Penal Code in the 19th century and one cannot single out only section 377 and call it archaic. Section 302IPC that deals with the offence of murder is equally old in terms of time but it is still current. A crime is a crime, notwithstanding it being committed within the four walls of the bedroom. An offence of murder committed in the dungeon of a castle will be called MURDER, irrespective of the privacy of the place. It will attract the attention of the investigative organs of the government. Homosexuality , as of now, is a crime even if it is protected by four walls of the bedroom.

Is a High Court competent to sit in judgement over the legality of a section of the code enacted almost a century and a half ago? It would have been appropriate if the bench had referred it to the Government of India to refer the matter to the Legislature for a comprehensive review of the Indian Penal Code in the light of experience gained over a period of time. As of now, the present judgement of the Delhi High Court amounts to tinkering here and there. A piecemeal reform is not in the interest of a healthy social order. The leaders of the society should not miss the wood while counting trees.

Finally, a word about Their Lordships fixing age of adults for the purposes of section 377IPC at 18. I concede that one is entitled to vote at 18. At the same time, law requires a male to be 21 and female to be 18 to tie the knot and become husband and wife. Sex is an important part of marriage for procreation and the male partner must attain the age of 21 to have sex in wedlock and procreate. In this judgement, the Delhi High Court has allowed two male adults who have attained the age of 18 to have sex in the bedroom against the order of nature. The age of adulthood for MSM or WSW should have been fixed at 21 in the larger interest of persons concerned and the society at large.

The citizens who have good of the Indian society at heart will now look forward to the judgement of the Supreme Court in this all important matter of criminality or otherwise of consensual acts of adults who are 18 years of age and above. May Parmatma grant us Medhavi Buddhi or sagacious wisdom to view the matter in correct perspective.

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